This new edition, expanded, corrected, and updated, is now available . Check here for UPDATES (the goal being regularly to post supplementary material):
* CLICK HERE to download the SUPPLEMENT (thus far) to the second edition (posted October 28, 2016). Includes the Supreme Court of Canada’s decision in Morasse v. Nadeau-Dubois, released Oct. 27, 2016. Note as well the important clarification (at least in Ontario) that while a contempt finding amounts to a final order, the dismissal of a contempt motion is interlocutory.
* CLICK HERE to read “R. v. Khadr: Did Prime Minister Harper Commit a Contempt of Court?” The Advocates’ Journal, 34:3, Winter 2015 at 10-14.
**Publication date: June 18, 2017.**
Every working day across Canada and the world, courts and other tribunals “take judicial notice” of certain matters – they accept certain “facts” without considering supporting evidence to prove their reliability. This makes judicial notice conceptual dynamite, efficient for extracting diamonds of truth but lethal if employed incautiously. In 1987, for example, in deciding the case of a particularly arrogant denier of the Jewish Holocaust, the Ontario Court of Appeal held that courts could not take judicial notice of the Holocaust as an historical fact, a decision that seemed to many of us breathtakingly blinkered if not racist. The issue was denial (technically, “spreading false news”), not whether Hitler was actually a genocidal maniac. In 1990, the court regained perspective and retreated from the ruling. (These cases were part of the inspiration for my 2007 novel, Murder on the Rebound.)
Historically the law of judicial notice has assumed that “everybody knows” certain things, or at least has ready access to that knowledge. But it uses “everybody knows” in the colloquial sense; at law, the phrase doesn’t include bigots, for instance, other mentally impaired people, or even those of more or less average intelligence who are uneducated or disconnected from anything much beyond their daily, localized existence. In any event, as Ian Binnie noted when he was on the Supreme Court of Canada, what everybody knows can be wrong (as in “Everybody knows you treat a cold with antibiotics”). Many societies that have developed their legal systems from British common law can no longer say that what “everybody knows” is always founded in cultural literacy. Multiculturalism or social diversity has narrowed the breadth of what everyone in such societies shares as knowledge. As the population of observant Muslims and Jews grows, can we safely say that “everybody knows what bacon tastes like”?
Sexual Privacy, the Internet, and the Law
**Forthcoming: Thomson Reuters will publish my book on this subject next year.**
Legal Fictions & Presumptions, and Constructive, Deemed, & Implied Entities: An Encyclopedic Analysis of Their Status at Law
The reasonable person and the “officious bystander.” Constructive trusts and dismissals. Deemed dispositions and undertakings. The presumptions of innocence of criminal law, of validity in patent law, of death in estates and family law. Implied terms, warranties and conditions in contracts and corporate-commercial matters. These and their many conceptual relatives make for the metaphysics that permeate every field of our law, and that often mark its evolution at the cutting edge.
Of legal fictions, Harvard law professor Lon Fuller notes, “There is scarcely a field of law in which one does not encounter one after another of these conceits of the legal imagination.” And as Prof. Nancy Knauer pointed out in 2010, “the mastery of as if reasoning” embedded in such metaphysics is essential in legal education and practice. Often, these formulations are an “instrumentality,” as legal historian Sir Henry Maine says of legal fictions, whereby “law is brought into harmony with society.”
Our jurisprudence balances itself on the central fiction of the reasonable person, the standard bearer for the duties we owe society and the reciprocal obligations it owes us. Fictional though this “person” remains, he and she are the foundation of the social contract and a benchmark for our social behaviour. Central to Anglo-Canadian law is the fiction that the sovereign is both a natural and corporate person (a corporation sole or body politic), that an unborn child can enjoy the rights of a legal person (a life in being) in matters of torts, employment, and estate law, and that trusts, dismissal, and even intent – something intangible to begin with – can exist constructively, supernaturally, as it were. Procedurally and substantively we “deem” and “imply” all sorts of actions (undertakings, disposition of property, contractual conditions, trusts, etc.) to have eventuated, when in reality they might not have. Then, too, historically the entire law of agency rests on various fictions, deemings, and presumptions (including vicarious liability), and there are the reasonable person’s nosier if less nervous cousin, the officious bystander (smugly opining about implied terms in other people’s contracts), the “ordinary harried person” of trademarks litigation, not to mention the family’s black sheep, “the moron in a hurry” of copyright law.
These entities persistently “renovate” the law (as William Blackstone saw it), providing a sort of equitable relief or ideal where otherwise the black letter of the law proves unworkable or inefficient. Several scholars have characterized them as necessary “patches” in the law, making it more serviceable until the legislator catches up to cultural developments and completes a more formalized repair.
Both a legal treatise and an encyclopedia of the various fictions, presumptions, deemings, constructions, and implied (including inferred) activities we use every day in the administration of justice, this work willl survey Anglo-Canadian common and statutory law, as well as Quebec civil and, to the extent relevant, American law. It will begin by defining and charting the law regarding the various entities, from ancient times to the present day, distinguishing them at last from one another. I will make the case that, when properly employed, legal fictions in particular (and the other formulations to the extent they work like such fictions) serve as an instrument of ideal justice versus the mechanical (and thereby often harsh) application of law – that, indeed, they comprise a sort of equitable remedy filling the gap between law and justice where the law and legislatures lag social evolution. The case reports are rich in examples, today and historically.
This section also will distinguish the subject intellectual processes from others such as inferences and assumptions. Then it will compile and make coherent the principles drawn from the cases surveyed later in the book, in the “encyclopedia” section, where I shall discuss our law’s various fictions, deemings, constructions and so on, individually. That latter portion of the book will:
(1) document the persistence of the entities as juristic tools;
(2) survey the debate over their utility and risks, historically and in today’s jurisprudence;
(3) analyze the entities as a function of legal language, which is to say, as a separate dialect from everyday speech, such that the metaphorical or fictional becomes a specialized “juristic” truism, profoundly influencing legal discourse and its social effects;
(4) catalogue and analyze (in the greatest part of the treatise) each individual instance of each entity (e.g., “deemed disposition,” “constructive dismissal,” “implied term,” “presumption of death,” “reasonable person,” etc.) in current and historic law.
(5) By way of conclusion, I will propose two new central fictions: the conscientious neighbour (as the ultimate evolution of the reasonable person) and aspirational or paradisal justice, which is meant to provide the entire justice system a companion aspirational standard to the reasonable person/conscientious neighbour (drawing some of its conception from the work of Professor Fuller, who wrote in the nineteen-thirties, coincidentally, about legal fictions). I believe that these two concepts mark important, practicable advances in the application of legal fictions.
The overall aim is to move beyond dated, scattershot (and sparse), academic discourse to a comprehensive, practical, and highly accessible reference work suited to